United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant/Movant David Louis
King's (“Movant”) Emergency Motion to Correct
Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1)
(“Section 2255 Motion”), filed May 26, 2016. On
December 1, 2016 and February 17, 2017, United States
Magistrate Judge Kirtan Khalsa filed Proposed Findings and
Recommended Disposition (“PFRD”) and Supplemental
Proposed Findings and Recommended Disposition
(“Supplemental PFRD”), respectively, in which she
recommended that the Court grant Movant's Section 2255
Motion, vacate his sentence, and resentence him without
enhancement under the ACCA at the Court's earliest
opportunity. (Docs. 12, 15.) The Government objected to the
PFRD and Supplemental PFRD on December 15, 2016, February 6,
2017, and March 3, 2017. (Docs. 13, 14, 17.) Movant's
Section 2255 Motion and the Government's objections are
now before the Court.
Factual Background and Procedural History
November 21, 2002, the Government charged Movant by
indictment with two counts of being a felon in possession of
a firearm and ammunition in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). (CR Doc.
The Court appointed attorney Kenneth Gleria to represent
Movant, who pled not guilty to the charges against him on
December 12, 2002. (CR Docs. 5, 7.) On January 30, 2003, the
Court released Movant from custody pending trial. (CR Docs.
pled guilty to Count I of the indictment pursuant to a plea
agreement on July 15, 2003. (CR Doc. 31.) However, on August
26, 2003, the Government filed a notice that it intended to
seek a minimum sentence of fifteen years' imprisonment
pursuant to the ACCA, rather than a maximum sentence of ten
years' imprisonment pursuant to 18 U.S.C. §
924(a)(2) as stated in the parties' plea agreement. (CR
Doc. 32.) The Government identified three predicate
convictions to support the enhanced sentence: a 1986 armed
robbery conviction, a 1995 commercial burglary conviction,
and a 1995 residential burglary conviction, all under New
Mexico law. (Id. at 2; Doc. 9-1 at 10 ¶ 26.) In
light of this new information, the Court permitted Movant to
withdraw his guilty plea on September 25, 2003. (CR Doc. 35.)
On October 8, 2003, the Government filed a superseding
indictment to include charges that Movant's sentence
should be enhanced under the ACCA. (CR Doc. 37.)
entered into a new plea agreement, and pled guilty to Count
II of the superseding indictment, on February 18, 2004. (CR
Docs. 56, 57.) In the new plea agreement, Movant acknowledged
that he faced a minimum sentence of fifteen years'
imprisonment under the ACCA. (CR Doc. 56 at 2.) However, on
April 21, 2004, Movant filed objections to the Presentence
Investigation Report, in which he argued that the Court
should not enhance his sentence because his prior conviction
for commercial burglary was not for a violent felony under
the ACCA. (CR Doc. 61.) Rejecting this argument, the Court
sentenced Movant to fifteen years' imprisonment at a
hearing on May 26, 2004. (CR Docs. 64, 83.) The Court entered
a judgment of conviction against Movant on the same date,
subsequently dismissed the original indictment and Count I of
the superseding indictment. (CR Docs. 65, 67.) On appeal, the
Tenth Circuit affirmed the Court's use of Movant's
prior commercial burglary conviction to enhance his sentence.
(CR Doc. 73.)
has been in federal custody since July of 2004. (Doc. 1 at
3.) He filed the Section 2255 Motion presently before the
Court on May 26, 2016, less than one year after the United
States Supreme Court struck down a portion of the ACCA in
Johnson v. United States, - U.S. -, 135 S.Ct. 2551
(2015). (Doc. 1.) The Government responded in
opposition to the motion on August 8, 2016, and Movant filed
a reply in support of it on August 30, 2016. (Docs. 8, 10.)
In his motion, Movant asks the Court to reduce his sentence
from fifteen years' to no more than ten years'
imprisonment, which was the maximum sentence he faced without
the ACCA enhancement, and order his immediate release from
federal custody because he has already been imprisoned for
more than ten years. (Doc. 1 at 1.) In support of this
request, Movant argues that the enhancement of his sentence
is no longer proper, because: (1) the Court necessarily
relied on the ACCA's “residual clause” to
find that his prior armed robbery conviction was for a
violent felony under the Act; and, (2) the Samuel
Johnson decision struck down the residual clause as
unconstitutionally vague. (Id. at 4-5; Doc. 10 at
response in opposition to Movant's motion, the Government
acknowledges that the Court likely relied on the ACCA's
residual clause to find that Movant's prior armed robbery
conviction was for a violent felony, and that this clause is
no longer valid. (Doc. 8 at 1-2.) However, the Government
argues that the enhancement of Movant's sentence
nevertheless remains proper because New Mexico armed robbery
still qualifies as a violent felony under the ACCA's
“elements clause, ” which Samuel Johnson
left intact. (Id. at 2-3.)
December 1, 2016 PFRD, Magistrate Judge Khalsa recommended
that the Court grant Movant's Section 2255 Motion, and
the Government filed Objections to Magistrate Judge's
Proposed Findings and Recommended [Disposition]
(“Objections”) on December 15, 2016. (Docs. 12,
13.) Then, on January 4, 2017, the Tenth Circuit issued
United States v. Harris, 844 F.3d 1260 (10th Cir.
2017), which caused the Government to modify its position in
a Supplement to United States' Objections to Magistrate
Judge's Proposed Findings and Recommended [Disposition]
(“Supplement”), filed February 6, 2017. (Doc.
14.) Also after entry of Magistrate Judge Khalsa's PFRD,
two district judges and three other magistrate judges in this
District issued decisions or recommendations contrary to
those in the PFRD. (See Doc. 15 at 10-11.) Thus, on
February 17, 2017, Magistrate Judge Khalsa filed her
Supplemental PFRD, in which she reexamined her original
recommendation in light of Harris, 844 F.3d at 1260,
the Government's Objections and Supplement, and the
recent decisions of other judges in this District. (Doc. 15.)
However, the Magistrate Judge ultimately declined to alter
her original recommendation. (Id. at 16.) Movant
responded to the Government's Supplement on February 25,
2017, and the Government filed Objections to Magistrate
Judge's Supplemental Proposed Findings and Recommended
[Disposition] (“Objections to Supplemental PFRD”)
on March 3, 2017. (Docs. 16, 17.)
Court has considered Movant's Motion, the Magistrate
Judge's PFRD and Supplemental PFRD, and the
Government's Objections, Supplement, and Objections to
Supplemental PFRD, and has conducted a de novo
review of the record in this case and the underlying criminal
case. Based on this review, and for the reasons set forth
below, the Court finds that the Government's Objections,
Supplement, and Objections to Supplemental PFRD are
unfounded, the Magistrate Judge's PFRD and Supplemental
PFRD should be adopted, and Movant's Section 2255 Motion
should be granted.
courts may refer dispositive motions to a magistrate judge
for a recommended disposition pursuant to 28 U.S.C. §
636 and Federal Rule of Civil Procedure 72. 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). “Within 14 days
after being served with a copy of the [magistrate
judge's] recommended disposition, a party may serve and
file specific written objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2); 28 U.S.C.
§ 636(b)(1). When resolving objections to a magistrate
[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).
party's objections to the magistrate judge's report
and recommendation must be both timely and specific to
preserve an issue for de novo review by the district court or
for appellate review.” United States v. One Parcel
of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Further, “[i]ssues raised for the first time in
objections to the magistrate judge's recommendation are
deemed waived.” Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996); see also United States v.
Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)
(“In this circuit, theories raised for the first time
in objections to the magistrate judge's report are deemed
ACCA provides that a person who violates 18 U.S.C. §
922(g) and has three prior convictions for a “violent
felony” or “serious drug offense” is
subject to a minimum term of imprisonment of fifteen years.
18 U.S.C. § 924(e)(1). Under the ACCA, the term
“violent felony” means
any crime punishable by imprisonment for a term exceeding one
year . . . that-
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). Subpart (i)
of this definition is known as the “elements
clause” or “force clause”; the
non-italicized portion of subpart (ii) is known as the
“enumerated offenses clause”; and, the italicized
portion of subpart (ii) is known as the “residual
clause.” Samuel Johnson, 135 S.Ct. at 2556;
Harris, 844 F.3d at 1263; United States v.
Fritts, 841 F.3d 937, 939 (11th Cir. 2016); United
States v. Gardner, 823 F.3d 793, 801-02 (4th Cir. 2016);
United States v. Priddy, 808 F.3d 676, 683 (6th Cir.
2015). In Samuel Johnson, the Supreme Court held
that the ACCA's residual clause is unconstitutionally
vague, but left its enumerated offenses and elements clauses
intact. 135 S.Ct. at 2557, 2563.
determine whether an offense is a violent felony under the
ACCA, courts must generally apply the “categorical
approach, ” which requires that they consider only the
offense's statutory elements, and not the actual facts
underlying the defendant's prior conviction.
Harris, 844 F.3d at 1263; United States v.
Duncan, 833 F.3d 751, 754 (7th Cir. 2016);
Gardner, 823 F.3d at 802; United States v.
Smith, 652 F.3d 1244, 1246 (10th Cir. 2011). Courts must
presume that a prior conviction “rested upon nothing
more than the least of the acts criminalized” by the
state statute. Moncrieffe v. Holder, - U.S. -, 133
S.Ct. 1678, 1684 (2013) (internal punctuation marks omitted).
However, “in construing the minimum culpable conduct,
such conduct includes only that in which there is a realistic
probability, not a theoretical possibility the state statute
would apply.” Harris, 844 F.3d at 1264
(quoting Moncrieffe, 133 S.Ct. at 1685). In other
[t]o satisfy this categorical approach, it is not necessary
that every conceivable factual offense covered by a statute
fall within the ACCA. Rather, the proper inquiry is whether
the conduct encompassed by the elements of the offense, in
the ordinary case, qualifies under the ACCA as a violent
Smith, 652 F.3d at 1246 (citation omitted). To
identify the least culpable conduct a state statute
criminalizes in the ordinary case, courts look to
“[d]ecisions from the state supreme court . . .
supplemented by decisions from the intermediate-appellate
courts.” Harris, 844 F.3d at 1264.
statute includes alternative elements that create distinct
versions of a crime, courts employ the “modified
categorical approach.” Gardner, 823 F.3d at
802; United States v. Hood, 774 F.3d 638, 645 (10th
Cir. 2014); see Mathis v. United States, - U.S. -,
136 S.Ct. 2243, 2249 (2016) (“[T]his Court approved the
‘modified categorical approach' for use with
statutes having multiple alternative elements.”). When
using the modified categorical approach, “a sentencing
court looks to a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and
colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Mathis, 136 S.Ct.
at 2449; Hood, 774 F.3d at 645. The court then
compares the elements of that crime, as the categorical
approach commands, with the elements of the relevant generic
offense. Mathis, 136 S.Ct. at 2249. However, the
modified categorical approach does not apply to statutes
“that enumerate various factual means of committing a
single element.” Id. at 2249, 2253-54.
Here, Movant's statute of conviction provides that
[r]obbery consists of the theft of anything of value from the
person of another or from the immediate control of another,
by use or threatened use of force or violence.
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is,
for the first offense, guilty of a second degree felony and,
for second and subsequent offenses, is guilty of a first
N.M. Stat. Ann. § 30-16-2.
This statutory language shows that armed robbery is not a
distinct offense from robbery; the offense is robbery whether
or not armed, and whether or not one is an accessory.
‘Armed robbery' is a way to commit
‘robbery' and, if done in that way, the penalty is
greater but the basic offense remains robbery.
New Mexico v. Roque, 1977-NMCA-94, ¶ 8, 91 N.M.
7, 569 P.2d 417. Thus, as stated in the Magistrate
Judge's PFRD, to determine whether Movant's armed
robbery conviction is a violent felony under the ACCA, the
Court must analyze the elements of robbery, plus the
additional element of commission of the offense “while
armed with a deadly weapon.” (Doc. 12 at 7); N.M. Stat.
Ann. § 30-16-2.
and armed robbery are not included in the ACCA's
enumerated offenses clause, and, as noted above, the
Act's residual clause is no longer valid. 18 U.S.C.
§ 924(e)(2)(B)(ii); Samuel Johnson, 135 S.Ct.
at 2557, 2563. Thus, to constitute a violent felony under the
ACCA, New Mexico armed robbery must satisfy the elements
clause; in other words, it must categorically have “as
an element the use, attempted use, or threatened use of
physical force against the person of another.” 18
U.S.C. § 924(e)(2)(B)(i). As Magistrate Judge Khalsa
observed, at first glance, New Mexico robbery, simple or
armed, would seem to satisfy this requirement easily, because
it consists of theft from the person or immediate control of
another “by use or threatened use of force or
violence.” (Doc. 12 at 7); N.M. Stat. Ann. §
30-16-2. “The gist of the offense of robbery is the
use of force or intimidation.” New Mexico v.
Bernal, 2006-NMSC-50, ¶ 28, 140 N.M. 644, 146 P.3d
289 (emphasis added) (citation omitted). In short, the
statute's plain language suggests that New Mexico
robbery, and thus also the aggravated offense of armed
robbery, fall squarely within the scope of the ACCA's
as the Magistrate Judge noted, the required analysis is
“not so straightforward in the sometimes
counterintuitive legal landscape recent federal jurisprudence
has created.” (Doc. 12 at 8.) The meaning of the term
“physical force” in the ACCA's elements
clause is a question of federal law, and the United States
Supreme Court has held that “physical force”
means “violent force-that is, force capable of
causing physical pain or injury to another person.”
Curtis Johnson, 559 U.S. at 138, 140 (emphasis in
original); Hood, 774 F.3d at 645; United States
v. Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010). The
Supreme Court therefore concluded that the force element of
Florida battery, which can be satisfied by “the most
nominal contact, such as a tap on the shoulder without
consent, ” did not categorically rise to the level of
physical force within the meaning of the ACCA. Curtis
Johnson, 559 U.S. at 138-40. Accordingly, ...